United States v. Michael Ioane , 524 F. App'x 383 ( 2013 )

FILED
NOT FOR PUBLICATION MAY 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10068
Plaintiff - Appellee, D.C. No. 1:09-cr-00142-LJO-3
v.
MEMORANDUM *
MICHAEL S. IOANE,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted April 18, 2013
San Francisco, California
Before: GOODWIN, O’SCANNLAIN, and N.R. SMITH, Circuit Judges.
Michael Ioane appeals his convictions and sentence for federal tax fraud
conspiracy, 18 U.S.C. § 371, and fraudulent presentation of fictitious United States
financial instruments, id. § 514(a)(2). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The district court’s June 2010 continuance and exclusion of time under the
Speedy Trial Act, id. § 3161, were “specifically limited in time” and “justified on
the record with reference to the facts as of the time the delay [was] ordered.”
United States v. Lewis, 611 F.3d 1172, 1176 (9th Cir. 2010); 18 U.S.C. §
3161(h)(7). In entering the continuance, the district court consulted all counsel,
including counsel for Ioane’s co-defendants, and “conduct[ed] an appropriate
inquiry” on the record to determine when all the defendants could be tried. United
States v. Lloyd, 125 F.3d 1263, 1269 (9th Cir. 1997). Trying Ioane’s co-defendants
eventually proved unnecessary, but at the time the delay was ordered, Lewis, 611
F.3d at 1176, the continuance and exclusion were justified. The other challenged
continuances and exclusions under § 3161(h)(7) were not clearly erroneous. See
United States v. Alvarez-Perez, 629 F.3d 1053, 1056–57 (9th Cir. 2010).
We review the district court’s denial of Ioane’s motion to suppress evidence
de novo, see United States v. I.E.V., 705 F.3d 430, 434 (9th Cir. 2012), and
conclude that in these circumstances, the challenged search warrant was not
impermissibly overbroad. The warrant specified dates, individuals, and corporate
parties, and contained a reasonably precise delineation of the types of records to be
seized; it was not a “laundry list.” See United States v. Bridges, 344 F.3d 1010,
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1017–18 (9th Cir. 2003); United States v. Rude, 88 F.3d 1538, 1551 (9th Cir. 1996).
Ioane’s claim of insufficient evidence to support the § 514(a)(2) convictions
lacks merit. Assessing the evidence in the light most favorable to the prosecution,
United States v. Stewart, 420 F.3d 1007, 1014–15 (9th Cir. 2005), the “Bills of
Exchange” that Ioane prepared fall well within the scope of § 514(a)(2). The Bills’
statements of apparent value, serial numbers, dates, and references to the
“Department of Treasury Foreign Letters of Credit Division” are akin to the
attributes described in United States v. Howick, 263 F.3d 1056, 1068 (9th Cir.
2001) (setting forth a non-exhaustive list of attributes in instruments subject to §
514(a)(2)).
Ioane’s instructional-error claims also fail. The district court’s initial
instructions regarding conspiracy to defraud were consistent with the definition of
§ 371 conspiracy in United States v. Caldwell, 989 F.2d 1056, 1058–59 (9th Cir.
1993), and our model § 371 instruction, and they did not constructively amend
Ioane’s indictment. See 989 F.2d at 1058; 9th Cir. Model Crim. Jury Instr. No.
8.21.
In another portion of the conspiracy instructions, the district court
erroneously discussed liability under Pinkerton v. United States, 328 U.S. 640
(1946). But because Ioane failed to object, we review for plain error. See United
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States v. Alferahin, 433 F.3d 1148, 1154 (9th Cir. 2006). Even assuming that the
instructional error affected Ioane’s substantial rights, the overwhelming and
convincing evidence, including detailed testimony from Ioane’s alleged co-
conspirator, demonstrates that a different decision by the jury would be “extremely
unlikely.” United States v. Perez, 116 F.3d 840, 847–48 (9th Cir. 1997) (en banc);
see also United States v. Morfin, 151 F.3d 1149, 1151 (9th Cir. 1998).
Turning to sentencing, we review the district court’s loss calculation
methods de novo and the determination of the amount for clear error. See United
States v. Ali, 620 F.3d 1062, 1073 (9th Cir. 2010). The method of calculating
Ioane’s sentencing loss was appropriate and similar to that discussed in Ali. See id.
And it was hardly illogical or implausible to conclude that Ioane intended a $1.3
million loss, given the IRS Notice of Deficiency and the detailed testimony about
Ioane’s misconduct after receiving that Notice.
The district court committed no clear error in concluding that Ioane was a
leader or manager, and the court did not abuse its discretion in applying a leader-
organizer sentencing enhancement. See United States v. Yi, 704 F.3d 800, 807–08
(9th Cir. 2013). Evidence at trial indicated that, among other things, Ioane directed
the filing of false property liens and built many fraudulent trusts used for tax-
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evasion purposes. When referring to Ioane’s role in creating the fraudulent trusts,
Ioane’s alleged co-conspirator called him the “captain” of the “ships.”
AFFIRMED.
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